I’ve previously blogged about the probable inapplicability of 47 USC 230 to CafePress and its competitors because of their offline publication onto physical media. This case, which doesn’t reference 230 at all, gives hope to these “print-on-demand” vendors that they will nevertheless get some insulation from user-created problems even without statutory immunization.

The facts of the underlying dispute (which are a little cryptic because the opinion is partially redacted) sound like the makings of a Hollywood movie. Stop me if you’ve seen this one before. In this case, two high school cheerleaders in Maine start out as friends but have a falling-out in October 2003 that takes a very nasty turn. By November, both girls are suspended from school, and each of them complains of harassment by the other to the school, the police and elsewhere. (As Rodney King said, can’t we all just get along?) Then, in November 2003, someone spraypaints swastikas in between Ms. Sandler’s house and the high school in an apparent anti-semitic attack on Ms. Sandler. Although she denies doing the spraypainting, Ms. Calcagni was convicted of criminal mischief and entered a consent degree with the AG’s office in a civil hate crime prosecution.

Believing that Ms. Calcagni was wronged, her parents launched a media campaign to set the record straight. The campaign included a book detailing their side of the story, which they shopped around to publishers. Finding no takers among traditional publishers, they decide to self-publish the book through BookSurge, a typical print-on-demand site. See more about the book here, including a review that describes the book as “sloppy journalism.” They order 760 copies from BookSurge, which they give away and try to sell in local bookstores in Maine. Another 80 copies are sold online through Amazon and BookSurge.

From my outsider’s perspective, it seems obvious that the Sandler and Calcagni families are locked in a cataclysmic downward spiral that will make some lawyers rich and will leave a lot of other people very unhappy for many years. It’s already been 5 years since the fateful turn of events, and the parties don’t appear to be close to being done with each other. The latest iteration in the multi-front war is Sandler’s lawsuit against numerous people involved with the book publication, claiming defamation, privacy invasion and related torts. I suspect that this lawsuit between Sandler and Calcagni will fester in the courts for years, but I’m only interested in the court’s ruling yesterday on BookSurge’s request to exit the lawsuit early.

If BookSurge was a traditional publisher, providing editorial and marketing services, BookSurge should face defamation liability as a primary publisher. However, BookSurge was a printing house that took an uploaded PDF and converted it into a physical book. In this sense, BookSurge might be analogized to a copyshop that reproduces accurate copies of customers’ materials. BookSurge adds a little more value than a pure robotic copier; for example, it helps match self-publishers with book retailers like Amazon.com (and it wouldn’t surprise me if BookSurge gets some money for making that match). Nevertheless, I think it’s fair to say that, overall, BookSurge is passive in the printing process.

Due to BookSurge’s passivity, BookSurge lacks the requisite degree of scienter to hold it as a “publisher” for purposes of defamation or the privacy invasions. As the court says:

Because BookSurge does not undertake to edit, review or fact-check any of its publications, it has no means or way of knowing whether defamatory material is contained within the works that it publishes. BookSurge maintained no editorial control over the works published. The responsibilities of BookSurge, which are known to the authors of the works, indicate that it is not an active participant in the creation of any defamation.

Some of Sandler’s claims of public disclosure of private facts also failed because she herself disclosed the same facts on her MySpace page. As a result, BookSurge is dismissed from the lawsuit.

I think this ruling bodes well for sites like CafePress to the extent they can’t claim 47 USC 230. In many cases, they effectively act as a “contract printer” for users by taking user-submitted content and printing it. Admittedly, the printing media might be non-traditional (t-shirts, coffee mugs, etc.) but I think the reasoning should apply the same. However, it remains less clear if CafePress’ other involvement in the sales–taking payment, shipping the items directly to buyers–will make the analysis more cloudy. Further, this case doesn’t do much to help insulate CafePress and its ilk when the underlying claim is strict liability, such as copyright infringement.

UPDATE: For another example of women who just can’t seem to get along, see Devereaux v. Rodriguez, 2008 WL 2756476 (Cal. App. Ct. July 16, 2008)